1. ‘Sex’ in Article 15 includes ‘sexual orientation’.

2. 15(1) violated.

1. ‘Sex’ in Article 15 includes ‘sexual orientation’

In the Naz foundation case1, it was clarified that the term ‘sex’ in Art. 15(1) cannot be limited
to a simplistic interpretation as applying only to gender. The purpose underlying this
fundamental right against sexual discrimination is to prevent behaviour that treats people
differently for reason of not being in conformity with general/stereotypical/normal gender
roles.2 It should also be noted that the Hon’ble SC in Suresh koushal’s case did not question
the High Court’s interpretation of Art. 153.
Further, in the case of Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry
of Law and Justice, it was held that “Sex as it occurs in Article 15, is not merely restricted to
the biological attributes of an individual, but also includes their “sexual identity and
character”.

The J.S. Verma Committee4 had recommended that ‘sex’ under Article 15 must include
‘sexual orientation’:

“65. We must also recognize that our society has the need to recognize different sexual
orientations a human reality. In addition to homosexuality, bisexuality, and lesbianism, there
also exists the transgender community. In view of the lack of scientific understanding of the
different variations of orientation, even advanced societies have had to first declassify
‘homosexuality’ from being a mental disorder and now it is understood as a Report of the
Committee on Amendments to Criminal Law (2013) triangular development occasioned by
evolution, partial conditioning and neurological underpinnings owing to genetic reasons.
Further, we are clear that Article 15(c) of the constitution of India uses the word “sex” as
including sexual orientation.”

The prohibition against discrimination under Article 15 on the ground of ‘sex’ should
therefore encompass instances where such discrimination takes place on the basis of one’s
sexual orientation.

1
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277.
2
Ibid.
3
Suresh Kumar Koushal and another v. NAZ Foundation, Civil Appeal No. 10972 (2013, Supreme Court of
India)
4
Report of the Committee on Amendments to Criminal Law (2013)
In the same case, the Supreme Court referred to Yogyakarta Principles. The 33 rd principles
which was referred to by the Supreme Court stated that “Everyone has the right to be free
from criminalisation and any form of sanction arising directly or indirectly from that person’s
actual or perceived sexual orientation, gender identity, gender expression or sex
characteristics.”5 These principles were referred to in various other cases in the previous
decisions.

In the international sphere, there are umpteen numbers of authorities which prohibits the
discrimination on the basis of sexual orientation. The ECHR in “Dudgeon v United
Kingdom”6 ruled against discrimination on sexual orientation.

In a landmark decision decided by the UNHRC7, it was claimed and ultimately upheld, that
rights under Art 26 which prohibited discrimination on the basis of sex 8 included within their
interpretative, scope prohibition of discrimination on the basis of sexual orientation.

HRC held that „sex‟ in art. 2 of the ICCPR includes sexual orientation. 9 The Canadian SC
also treated sexual orientation as ground analogous to that of sex listed in Section 15(1). 10
The SC of Nepal recently recognised equal rights of homosexuals.11

Therefore, it can be clearly inferred from the above judicial pronouncements that ‘sex’ in
Article 15 includes ‘sexual orientation’. Therefore, any discrimination on the grounds of sex
would mean discrimination on the grounds of ‘sexual orientation’. In the present case, by
discriminating on grounds of sexual orientation, they have discriminated on the grounds of
sex violating Article 15.

2. Article 15(1) violated.

Clause 1of Art 15 says that any act of the state shall not discriminate as between the citizens
on grounds only of religion, race, caste, sex, place of birth or any of them. The plain meaning
of the prohibition is that no person of a particular religion , race, caste etc be treated
unfavourably by the state when compared with the persons of other religion, race etc merely
because he belongs to a particular religion etc.12 If a person is sought to be discriminated
5
Yogyakarta Principle 33
6
Dudgeon v. United Kingdom, (1981) 4 EHRR 149.
7
Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992,31/03/1994).
8
International Covenant on Civil and Political Rights,1966.
9
Toonen v. Australia (No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994)
10
Vriend v. Alberta per Cory J. para 90[1998] 1 S.C.R. 493
11
Sunil Babu Pant &Ors. v. Nepal GovernmentWrit Petition No.917 of 2007 decided on 21stDecember, 2007),
12
D.D Basu, Introduction To Constitution of India,96( 21st edn 2012).
against simply because he belongs to a particular community, religion, race or sex, he can get
the State action annulled through a court.13 Art. 15 is particular application of the right of
equality, protecting the citizens against discrimination on certain grounds.14

It is humbly submitted that discrimination against the petitioner on basis of sexual orientation
is violative of Art.15 as it constitutes discrimination on the basis of sex because sexual
orientation cannot be defined without reference to sex. There is an inescapable link between
the two as discrimination on the basis of orientation is premised on “sex-based preferences,
assumptions, expectations, stereotypes or norms”.15 It is so because consideration to sexual
orientation will require a person’s sex to be taken into account and will be based on gender
stereotypes.

The founding fathers while drafting the constitution knew that eventually there would arise a
strong need for an anti-discrimination law in the country.16 This was the basis for the
inclusion of Art.15 (1) in the constitution. This article prohibits outright any form of
discrimination on sex.

Therefore, in the present case, TRISCO CORPORATION SOCIETY Trust has discriminated
on the basis of sexual orientation, hence on the basis of ‘sex’ in Article 15(1) as they have
discriminated on the basis of homosexuality, violating their fundamental right.

Further, it is mentioned in that fact that TRISCO acts in accordance with strategy of non-
discrimination, on grounds of religion, race, case, sex/sexual orientation, place of birth, age,
disability, descent and residence.

But, in the present case, by discriminating on account of sexual orientation, TRISCO has
acted against its own rules and strategies, violating the fundamental rights of the petitioners.

13
Ibid.
14
State of Sikkim v. S.P. Sharma, AIR 1994 SC 2342.
15
Christine Kehoe,American Psychological Ass'n, "Definition of Teims: Sex, Cjender, Gencter Identity, Sexual
Orientation" (Feb. 2011)
16
Samaraditya Pal, India’s Constitution, Origins and Evolution, 674, (Ed. 1, 2014).